SZAPH v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1246

FEDERAL COURT OF AUSTRALIA

SZAPH v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1246

SZAPH & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N861 of 2004

9 SEPTEMBER 2004
MADGWICK J
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N861 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAPH, SZAPI, SZAPJ and SZAPK APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	9 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the respondent’s costs, assessed in the sum of $4,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N861 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAPH, SZAPI, SZAPJ and SZAPK APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	9 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal from a judgment of Federal Magistrate Driver given on 7 May 2004 rejecting an application by the appellant for judicial review of an adverse decision by the Refugee Review Tribunal (‘the Tribunal’) made on 27 March 2003, and handed down on 16 April 2003.

2. There are actually four appellants.  They are husband and wife, and two children.  The claim of each of them is founded on the claims of the husband and father, the first referred to appellant, and it is convenient to speak of him, as I have already done, as the appellant.

3. The appellant and his family are nationals of Fiji of Indian ethnicity and adherent to the Hindu religion.  The appellant’s claim for a protection visa was based on a claim that he feared persecution in Fiji on the grounds of his race and/or religion and the inability or unwillingness of the Fijian government to offer him protection.  He claimed that in four separate incidents that occurred between October 1993 and October 1998, his person and his property were maltreated at the hands of ethnic Fijians.  Late in December 1999, he alleged that ethnic Fijians set fire to the house next door to his.

4. Before the respondent’s delegate rejected his application for a protection visa, the delegate had forwarded a letter to the appellant advising him of certain ‘country information’ and inviting his comment.  In particular, the delegate indicated that that information suggested that:

   ‘[T]he security authorities are currently maintaining law and order and the Fijian Government is committed to the protection of all its citizens, regardless of [their] ethnicity.’

5. The appellant did not respond to this. 

6. Before the Tribunal, the appellant gave evidence and his migration advisers sent detailed written submissions to the Tribunal which, among other things, commented upon the country information referred to in the delegate’s decision. 

7. The Tribunal was not satisfied that the appellant had a genuine fear of persecution if returned to Fiji.  An influential fact for the Tribunal was that the appellant and his family did not come to Australia until 4 January 2002, a long time after the incidents occurred, if indeed the appellant had been living in fear of persecution.  The Tribunal did not accept that the appellant and his family were specifically, as distinct from their membership of a class of ethnic Hindu Indians, targeted by ethnic Fijians because of their ethnicity or religion.  The Tribunal noted that the harassment of Indo/Fijians that had occurred during 2000 had not occurred during 2001, and considered that the present democratically elected government was fully committed to the protection of all citizens regardless of their ethnicity.  The appellant had complained of a lack of police activity, but the Tribunal did not accept that this was due to their anti-Indian bias.  Finally, the Tribunal did not accept a late claim of the appellant that he was closely identified with the Fijian Labor Party or that he had any well-founded fear of persecution for reasons of political opinion. 

8. The grounds upon which the Federal Magistrates Court was asked to intervene may be summarised as follows:  that there was no genuine consideration or inquiry into the appellant’s claims; that there was some error of law concerning procedural fairness; and that there was no evidence to support crucial findings of the Tribunal.

9. For reasons given, the learned Federal Magistrate rejected the claims and, on their face, those reasons are persuasive.  The grounds set out in the notice of appeal to this Court are in substance the grounds which had been relied upon before the court, at first instance, to demonstrate legal error on the part of the Tribunal. 

10. In written submissions, the appellant criticises the use of country information reports and suggests a denial of procedural fairness of kinds unsuccessfully canvassed before the Court at first instance, and adds some short submissions suggesting non-compliance with s 430(1)(d) of the Migration Act 1958 (Cth) (‘the Act’), which requires that the Tribunal prepare a written statement that refers to the evidence or any other material on which the findings of fact were based. Finally, there is a further suggestion of procedural unfairness, namely:

    ‘The … Tribunal failed to collect my part B documents from the [Department of Immigration & Multicultural & Indigenous Affairs] file and decided my matter without such documents.  Therefore, [the] … Tribunal failed to comply with section 424(1) and section 418(3) ... of the Migration Act 1958.  This is procedural unfairness.’

11. It is to be observed that neither before the Court at first instance nor here has any attempt been made to file any evidence in support of the appellant's contention that there was a denial of procedural fairness. It is unnecessary to consider whether the country information relied upon by the Tribunal fell within the terms of the exception contained in s 424A(3)(a) of the Act as the learned Federal Magistrate found on an approach which is conformable with some decisions in this Court. In any case, as his Honour pointed out, the appellant was given an opportunity to comment on the information and was under no illusions about the real issues which he faced and which were of concern to the Tribunal.

12. In relation to the new matter sought to be argued as to procedural fairness, there is no evidence to support it.  As it was clearly a matter that might have called for an evidentiary response from the respondent and as to which such a response might have been possible, the appellant should not, in my opinion, be permitted to raise it for the first time on appeal. 

13. Overall, I see no relevant error in the decision of the learned Federal Magistrate and it seems to me that the appellant must fail.

14. The appellant is unrepresented.  He has had some assistance from some person who at least had a little knowledge and/or acquaintance with migration law and it is apparent that, among other things, he did not understand that neither the Magistrates Court nor this Court can simply review the factual basis of the Tribunal’s finding.  The crucial findings of the Tribunal were legally open to it and nothing has been shown to indicate legal error, let alone of a jurisdictional kind which might affect the validity in law of the Tribunal’s decision.  It follows that the appeal must be dismissed.

15. The appellant is to pay the respondent’s costs of the appeal in the sum of $4,000.  The orders of the Federal Magistrates Court are confirmed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             10 November 2004

The appellant appeared in person.
Counsel for the Respondent:	Mr A McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 September 2004
Date of Judgment:	9 September 2004